Robert Burnett v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jul 18 2019, 8:48 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony C. Lawrence Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Burnett, July 18, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-130
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark Dudley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C06-1807-F5-1798
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-130 | July 18, 2019 Page 1 of 6
STATEMENT OF THE CASE
[1] Appellant-Defendant, Robert Burnett (Burnett), appeals the trial court’s
revocation of his home detention and the imposition of his previously-
suspended sentence.
[2] We affirm.
ISSUE
[3] Burnett presents this court with one issue on appeal, which we restate as:
Whether the trial court abused its discretion by ordering Burnett to serve his
entire previously-suspended sentence after he violated the terms of his home
detention.
FACTS AND PROCEDURAL HISTORY
[4] On October 17, 2018, Burnett pleaded guilty to Count I, burglary, a Level 5
felony, and Count II, theft, a Level 6 felony. The trial court subsequently
sentenced Burnett to two years in the Department of Correction (DOC) for the
Level 5 felony and to ten months in the Madison County Detention Center for
the Level 6 felony. Burnett’s sentences were to run concurrently, and the trial
court gave Burnett the “privilege of serving” his two-year sentence on home
detention “subject to the terms and conditions of [] said program.” (Appellant’s
App. Vol. II, p. 14).
[5] On October 29, 2018, the Madison County Probation Office (Probation Office)
filed an amended notice of probation violation, alleging that Burnett had
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“[f]ailed to appear for Home Detention hook-up on October 19, 2018.”
(Appellant’s App. Vol. II, p. 16).
[6] Prior to being convicted for the burglary and theft offenses, Burnett lived with
Tim Roof (Roof). Following Burnett’s conviction, Roof did not let Burnett
move back in. On November 17, 2018, Roof returned from a hunting trip. At
around 2:00 a.m., Roof was awakened by a loud banging on his front door. It
sounded “like somebody was trying to break in” (Transcript p. 10). Roof
grabbed a gun and walked to the hallway. As his front door opened, Roof
yelled, “stop[,] I got a gun I’ll shoot.” (Tr. p. 11). The door closed, and its
knob fell to the floor. Burnett then yelled, “Tim, Tim it’s me. I’m cold.” (Tr.
p. 11). Roof “didn’t know what to do” because Burnett was “not in the best of
shape,” so he allowed Burnett to sleep on his couch. (Tr. pp. 13-14). Roof
proceeded to gather his other guns that were in the living room and he took
them to his bedroom because Burnett had “just broke[n]” into his home, and he
“didn’t know what [Burnett’s] intentions were.” (Tr. p. 11). Roof stayed up all
night with his rifle. Roof’s brother, whom Roof had sent a text message, called
the police later that morning. When the police arrived, Roof “was very
shaken,” “upset,” and “scared,” and there was a rock in the trashcan outside
with the same debris as the broken door handle. (Tr. pp. 25, 27, 30). On the
same day, the State filed an Information, charging Burnett with Level 6 felony
residential entry and Class B misdemeanor criminal mischief.
[7] On November 21, 2018, the Probation Office filed an amended notice of
probation violation, alleging that on November 18, 2018, Burnett had
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accumulated two new offenses—i.e., Level 6 felony residential entry and Class
B misdemeanor criminal mischief.
[8] On December 19, 2018, at a hearing on the notice of home detention violation,
Burnett admitted to at least one of the violations—that he had failed to report to
the Probation Office for his home detention hook-up appointment. The State
also presented evidence surrounding Burnett’s residential entry and criminal
mischief offenses. At the conclusion of the hearing, the trial court revoked
Burnett’s home detention and ordered Burnett to serve the balance of his
previously-suspended sentence in the DOC.
[9] Burnett now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] Burnett appeals the trial court’s order revoking his placement on home
detention and the imposition of the balance of his previously-suspended
sentence.
[11] Both probation and community corrections programs serve as alternatives to
commitment to the DOC and both are made at the sole discretion of the trial
court. Treece v. State, 10 N.E.3d 52, 57 (Ind. Ct. App. 2014). A defendant is not
entitled to serve a sentence in either a probation or a community corrections
program; rather, placement in either is a matter of grace and a conditional
liberty that is a favor, not a right. Id. The standard of review of an appeal from
the revocation of a community corrections placement mirrors that for
revocation of probation. Id. That is, a revocation of community corrections
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placement hearing is civil in nature, and the State need only prove the alleged
violations by a preponderance of the evidence. Id.
[12] At the revocation hearing, Burnett admitted that he had failed to appear for his
hook-up appointment with the Probation Office. In addition, the State also
presented evidence that Burnett had committed additional offenses while on
probation—i.e., residential entry and criminal mischief.
[13] Burnett argues that the facts surrounding the residential entry and criminal
mischief offenses indicate that he did not commit these new offenses. Burnette
claims that he had previously lived with Roof, and although Roof claimed he
was scared by his entry, “Roof permitted Burnett to remain in the residence,
spend the night, sleep on his couch and let him eat his food. Additionally,
[Roof] did not call the police on him.” (Appellant’s Br. p. 8).
[14] Contrary to his assertions, Roof unequivocally testified that Burnett broke his
door handle and entered his house without his permission. The State
corroborated Roof’s testimony with the testimony of the responding officer,
who saw a rock in the trashcan outside of the door with the same debris as the
broken door handle. From this evidence, the trial court reasonably concluded
by a preponderance of the evidence that Burnett committed residential entry
and criminal mischief. Burnett’s argument is merely a request for this court to
reweigh the evidence, which it will not do. See Woods v. State, 892 N.E.2d 637,
639 (Ind. 2008). Moreover, Burnett’s admission that he failed to appear for the
hook-up appointment with the Probation Office was sufficient for the trial court
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to revoke his home detention. See Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct.
App. 2005) (holding that a “single violation of the conditions of probation is
sufficient to support the [trial court's] decision to revoke probation.”), trans.
denied.
[15] Here, the State met its burden of proving by a preponderance of the evidence
that Burnett had violated the terms of his home detention; therefore, we hold
that the trial court did not abuse its discretion by revoking Burnett’s home
detention.
CONCLUSION
[16] In sum, we conclude that the trial court did not abuse its discretion by revoking
Burnett’s placement on home detention. Accordingly, we affirm the trial court
order that Burnett serve the balance of his previously suspended sentence.
[17] Affirmed.
[18] Bailey, J. and Pyle, J. concur
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